Miller v. State, 09-18-00339-CR
| Decision Date | 04 March 2020 |
| Docket Number | NO. 09-18-00339-CR,09-18-00339-CR |
| Parties | JASON BENJAMIN MILLER, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 221st District Court Montgomery County, Texas
Appellant Jason Benjamin Miller was indicted for the offense of possession of a controlled substance—methamphetamine—in an amount of four grams or more but less than 200 grams, a second-degree felony. See Tex. Health & Safety Code Ann. § 481.115(d). The indictment included two enhancement paragraphs alleging previous convictions for possession of a controlled substance with the intent to deliver or manufacture and for possession of methamphetamine. Miller pleaded "notguilty," a jury found Miller guilty, found the enhancements true, and assessed punishment at imprisonment for thirty-five years. Miller now appeals his conviction, raising five issues. We affirm the judgment as reformed.
Deputy Willie Mayes, with the Montgomery County Sheriff's Office, testified that he encountered Miller while Mayes was "patrolling" and driving north on Highway 249. Mayes noticed that Miller "kind of did a double take and a triple take" when Miller saw Mayes, which Mayes took as a sign of nervousness about seeing the police. Mayes testified that Miller moved into the left lane in front of a white vehicle that had to put on its brakes and make an evasive action to avoid a collision with Miller's vehicle, and Mayes stopped Miller for an unsafe lane change. According to Mayes, the way Miller changed lanes was evasive or abrupt, and the lane Miller had been driving in was clear, and the other car had to put on its brakes. Mayes agreed that the Transportation Code does not specifically define "safely" in the context of a lane change. Mayes also agreed that he was speculating as to the reason the driver of the white car in the left lane applied the brakes and that he did not see the car's brake lights. Mayes recalled seeing the front of the white car pointdownwards, which indicated to Mayes that the driver applied his brakes and which Mayes regarded as an evasive action.
According to Mayes, the first thing Miller said to Mayes after the traffic stop was "my bad[,]" which Mayes thought related to the unsafe or illegal lane change. Mayes testified that once he had stopped Miller, Miller exhibited "[e]xcessive nervousness, either hiding something or putting something away[,]" which aroused Mayes's suspicions:
He was very nervous. Kind of like -- you know, just moving a lot. You know, twitching a little bit. And once the window was rolling down, I already knew at this point -- I had to keep my cool at this point because as soon as he let the window down, I automatically smelled a strong odor of marijuana, as soon as he let the window down.
Mayes further testified that the way Miller acted led Mayes to believe Miller was a methamphetamine user. According to Mayes, the smell of marijuana provided a reason to have Miller exit the vehicle and either detain Miller or search the vehicle.
Mayes called for backup, and Deputies Carpenter and Mittag responded, and Deputy Carpenter patted Miller down. Mayes testified that, during the pat-down, Carpenter asked Miller if he could pull out what was inside Miller's pocket, and Carpenter pulled out "a square block of crystal-like substance[]" that Mayes knew from his training to be methamphetamines. Mayes also testified that the officers found in Miller's vehicle a plastic container with a small amount of marijuana insideit. In viewing photographs taken of Miller's vehicle, Mayes identified a torch lighter used to heat a spoon for use in injecting drugs; a razor or scalpel that could be used for cutting crack, cocaine, or methamphetamines; a syringe; and a pipe with probable marijuana residue. Mayes also identified a photo of a block of methamphetamines weighing almost twelve grams found in Miller's pocket, a baggie containing additional methamphetamine, and a baggie containing marijuana. In another photo exhibit, Mayes identified red baggies used "to sell and distribute." Mayes agreed that these items were seized as evidence by Deputy Carpenter.
Deputy Mayes agreed that his patrol vehicle had a dash cam video system and that State's Exhibit 2 was a copy of the video of the traffic stop that was made by his dash cam, and the video was admitted into evidence and published to the jury. As the video was played, the following exchange occurred:
Mayes agreed that at the time the traffic infraction took place, the white car was not visible on the video. Mayes also agreed that during his work, he sometimes observes things that are not "fully captured" by the vehicle dash cam video.
Deputy Dimitri Carpenter, a Deputy with the Montgomery County Sheriff's Office, testified that he assisted Deputy Mayes upon arriving at the traffic stop when Mayes called for assistance. Carpenter testified that he could smell "a hint of weed in the car[,]" and Carpenter patted Miller down and searched him because of the smell of marijuana. Carpenter testified that when he approached the vehicle, he observed Miller in the driver's seat, reaching behind the passenger seat. Upon searching Miller, Carpenter found "a rock of methamphetamine[]" in Miller'spocket, which Carpenter placed into an evidence locker. According to Carpenter, he handed the bag of what he believed to be drugs to Deputy Mittag, who subsequently returned the bag to him. Carpenter recalled that Deputies Mayes and Mittag weighed the methamphetamine while Carpenter inventoried Miller's vehicle, and the bag was out of Carpenter's eyesight for a time while he was conducting the inventory and while Mayes and Mittag were testing the substance. Carpenter testified that he placed the substance in a bag at the scene but did not seal the bag until the officers got back to the office. Carpenter agreed that the bag of methamphetamine admitted into evidence as State's Exhibit 28 was later sent to a laboratory for analysis.
Cristina Muko, a forensic scientist with the Texas Department of Public Safety, testified that she performed testing on the sample that was admitted as State's Exhibit 28. Muko identified State's Exhibit 28 and described her procedure:
My label not only includes the case number, but it also includes my initials, the date I opened it, as well as the item number. And once I am finished with my analysis, I then heat seal the bag and place my initials and the date that I finished the analysis.
According to Muko, she completed her analysis on June 19, 2018. Muko testified that her analysis determined that the substance was methamphetamine in an amount of 11.12 grams. Muko's lab report was admitted into evidence as State's Exhibit 29, and the report identifies the substance tested as 11.12 grams net weight of acrystalline substance containing methamphetamine. The report also identifies the suspect in the case as Jason Miller with a birthdate of April 9, 1975, an offense date of April 28, 2018, and a Montgomery County case number of 18-A-115394. On cross-examination, the following exchange occurred:
Muko testified that an evidence envelope initially goes to DPS evidence technicians, that she places a label on the envelope when she has completed her analysis and then an evidence technician returns it to the agency. According to Muko, all of the people who receive the evidence must initial a sticker on the envelope.
Miller testified that he had previously been convicted for possession of a controlled substance in 2007, 2010, 2015, and 2017 and convicted of delivery of a controlled substance in 2012. Miller also testified that he is a "drug addict[]" and he has a problem with methamphetamine.
When asked about the day he was pulled over, Miller testified that he changed lanes because he knew an officer was behind him and Miller was trying to get out of the officer's way. Miller believed he changed lanes safely and stated:
I was making a safe lane change. I put my blinker on and I got over like everybody does. . . . I was trying to get out of the cop's way. He was riding my rear. You know what I am saying? I was doing the speed limit and he was...
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